OFCA - Tariffs of Fixed Network Operators

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Gazette No.: 10/2001 Published on 9 Mar 2001

FIXED TELECOMMUNICATION NETWORK SERVICES LICENCE
TELECOMMUNICATION ORDINANCE (Chapter106)

In accordance with General Condition 20 of Fixed Telecommunication Network Services Licence, Eastar Technology Limited hereby publishes the General Terms and Conditions for Service (for commercial customers) under which it will provide the Fixed Telecommunication Network Services.

GENERAL TERMS AND CONDITIONS FOR SERVICE (FOR COMMERCIAL CUSTOMERS)

1.	INTERPRETATION
1.1	In this Agreement, unless the context requires otherwise the following expressions shall have the following meanings respectively:-
	"Application"	means any written application submitted by the Customer to the Company for the provision of the Services;
	"Business Day"	means any day, except Saturdays and Sundays, on which banks in Hong Kong are open for business;
	"Company"	means Eastar Technology Limited;
	"Customer"	means the person subscribing for the Services under this Agreement, references to which in this Agreement shall include references to the Users unless the context requires otherwise;
	"Customer Provided Items"	means the items used by the Customer to access or connect to the Services, other than the Equipment;
	"Deposit"	means any deposit payable by the Customer to the Company in accordance with this Agreement;
	"Dollar(s)" and "HK$"	means Hong Kong Dollars, the lawful currency of Hong Kong for the time being;
	"Equipment"	means any equipment provided by the Company to the Customer;
	"Hong Kong"	means the Hong Kong Special Administrative Region of the People's Republic of China;
	"Intellectual Property Rights"	means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights, rights to confidential information, actual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
	"Location"	means the site where the Equipment is to be installed;
	"Minimum Contract Term"	means any minimum period for which the Customer agrees to acquire the Services as stated in any Special Conditions or Application;
	"Services"	means the services provided by the Company to the Customer under this Agreement as described in the Application and includes, but not limited to, the provision of any goods;
	"Special Conditions"	means any terms and conditions identified as such and applicable to the Services;
	"Term"	means the duration of this Agreement as specified in Clause 8.1; and
	"User"	means any person accessing the Services under or through the Customer's account(s) or email address(es).

1.2	References herein to Clauses are to the clauses of this Agreement unless the context requires otherwise.
1.3	The headings are inserted for convenience only and shall not affect the construction of this Agreement.
1.4	Unless the context requires otherwise, words importing the singular include the plural and vice versa, words importing a gender include every gender and references to any person shall include references to an individual, firm, or body corporate or incorporate.
1.5	This Agreement comprises the following documents (in decreasing order of precedence):
	(a)	the Special Conditions;
	(b)	the clauses of this Agreement; and
	(c)	the Application
	The English version of this Agreement shall prevail over versions in any other language.
1.6	The terms of this Agreement are subject to change by the Company by publication, by notice or in accordance with the Telecommunications Ordinance.
2.	SERVICES
2.1	The Company shall use reasonable commercial endeavours to supply the Services on the terms and conditions of this Agreement commencing from the date advised by the Company. The Customer acknowledges and agrees that as some Services are provided on a shared basis, the Company does not warrant or guarantee their availability, quality and performance as they may be affected by the use of the Services by other customers.
2.2	The Company may install or reconfigure the Customer Provided Items for the purposes of the Services including, but not limited to, removal or substitution of any network connections and related items. The Company shall not be liable for any consequences of such installation or reconfiguration including, but not limited to, the voiding of any warranty applicable to the Customer Provided Items.
2.3	Where any Company employee or contractor works under the guidance or follows the direction of the Customer, then (to the fullest extent permitted by law) the Company shall have no liability (whether in contract or tort or otherwise) in connection with any act or omission of such employee or contractor which results from that guidance or direction.
2.4	The Company shall not be responsible for any interruptions or disruptions to the Services caused by or resulting from the failure or poor performance of any third party network or telecommunications services which it uses to perform the Services.
3.	CUSTOMER OBLIGATIONS
3.1	The Customer shall be responsible for making all arrangements necessary for connecting to or accessing the Services including, but not limited to, purchasing any required software or hardware.
3.2	The Customer shall not connect any equipment to the Equipment, the Services or the Company's network or equipment without the Company's written consent. The Customer shall ensure that the Customer Provided Items and their interface and connection comply with all relevant standards and regulations including, but not limited to, that required by the Telecommunications Authority. The Customer shall immediately disconnect any Customer Provided Item if requested by the Company.
3.3	The Customer shall not share, or allow to be shared, the Services including, but not limited to, on any telecommunications or computer network (such as any local area network or wide area network).
3.4	The Customer shall provide all information reasonably required by the Company including, but not limited to, its name, address and financial status. The Customer shall immediately notify the Company in writing if any information previously provided to the Company is incorrect or has changed.
3.5	The Customer shall keep its user names, account names and passwords secret, and shall be responsible (including, but not limited to, for payment) for all uses of the Services under or through its account(s) or email address(es), whether or not the use is authorised by the Customer.
3.6	The Customer shall not and shall not authorise, permit or assist any person to use the Services to do any of the following:
	(a)	send unsolicited commercial messages or communications in any form including, but not limited to, sending mass advertisements for products or services, quick-getting-rich schemes, chain letters, or any unsolicited commercial emails;
	(b)	engage in any activities or actions that infringe or misappropriate the intellectual property rights of others including, but not limited to, using third party copyrighted materials without appropriate permission, using third party trademarks without appropriate permission or attribution, and using or distributing third party information protected as a trade secret information or in violation of a duty of confidentiality;
	(c)	engage in any activities or actions that would violate the personal privacy rights of others including, but not limited to, collecting and distributing information about Internet users without their permission;
	(d)	send, post or host harassing, abusive, defamatory, fraudulent, libelous, illegal, offensive, indecent, racist, discriminatory, seditious, threatening, menacing, immoral or obscene materials or assist in any similar activities related thereto;
	(e)	store or distribute prohibited materials including, but not limited to, programs containing viruses or Trojan horses and tools to compromise the security of other computers, networks or sites;
	(f)	intentionally omit, delete, forge or misrepresent any transmission information including headers, return mailing and Internet protocol addresses;
	(g)	engage in any activities or actions intended to withhold or cloak the Customer's or its User's identity or contact information;
	(h)	use the Services for any illegal purposes, in violation of any applicable laws or regulations or in violation of the rules of any other service providers, web sites, chat rooms or the like;
	(i)	make or attempt to make unauthorised use of any computer, network, services or other resources;
	(j)	use the Services for voice transmission; and
	(k)	use the Services in a manner which interferes with the use of telecommunications, network or other services by any person.
3.7	The Customer shall ensure that the acceptable use policies of the Company in relation to the Services are complied with at all times.
3.8	The Customer agrees that it has no right to any email account or address provided by the Company other than to use it for the purposes of the Services.
3.9	The Customer has the sole responsibility to back-up its data and software.
3.10	The Customer shall not contact the Company outside the customer service hours as determined by the Company from time to time.
3.11	The Services are provided to the Customer only. The Customer shall not resell or allow the use of any of the Services by any other person.
3.12	The Customer shall ensure, and is liable to the Company for, the compliance with the terms of this Agreement (mutatis mutandis) by all Users. Any breach of this Agreement by any User shall be deemed to be a breach by the Customer.
4.	EQUIPMENT
4.1	The Company may provide equipment to the Customer for accessing the Services (the "Equipment").
4.2	The Customer shall, at its own expenses, suitably prepare the Location for delivery and installation of the Equipment, and shall afford to the Company all electrical and other connections, fittings and facilities reasonably required by it to enable delivery and installation of the Equipment to take place.
4.3	The Equipment shall be deemed to have been irrevocably accepted by, and all risks of loss or damage to the Equipment shall pass to, the Customer upon delivery.
4.4	The Customer shall have no title, right or interest in the Equipment except the right to use the Equipment solely for the purposes of accessing the Services in accordance with this Agreement.
4.5	The Customer shall protect the Company's interests in the Equipment including but not limited to, making clear to others that the Company is the owner of the Equipment.
4.6	The Customer shall not apply for or obtain any duplicate or counterpart of any document of title, licence or certificate of registration relating to the Equipment without the Company's prior written consent.
4.7	The Customer undertakes to the Company and agrees:
	(a)	to take all reasonable and proper care of the Equipment and keep the same in good and serviceable condition and working order (reasonable fair wear and tear excepted) and to indemnify the Company against loss of or damage to the Equipment howsoever caused;
	(b)	to ensure that any instructions or manuals supplied for use of the Equipment are or will prior to the Equipment being brought into use be fully understood and will be observed by the Customer and any person who will be responsible for the use of the Equipment;
	(c)	to take such steps as may be properly recommended by the Company or may otherwise be necessary to ensure that the Equipment will be safe and without risks to health and safety when properly used by the Customer or authorised users;
	(d)	to obtain, effect and keep effective all permissions, licences and permits which may from time to time be required in connection with the business of the Customer and the use of the Equipment at the premises where it is situated and to comply with all statutes and other obligations of all kinds in relation to the Equipment and the use thereof and at its own expense to add to or to install with the Equipment any safety or other equipment required by any applicable law or regulation to be so added or installed for the use or operation of the Equipment;
	(e)	only to operate the Equipment and to permit the Equipment to be operated in a skilful and proper manner and by persons who are competent to operate such goods;
	(f)	not to tamper with the Equipment or make or cause or permit to be made any alteration, amendment, modification or addition to the Equipment without the Company's prior written consent and that any such alteration or modification of whatsoever kind shall belong to and become the property of the Company and part of the Equipment;
	(g)	to keep the Equipment suitably housed and in particular to keep the Equipment in conformity with any statutory requirements from time to time applicable thereto;
	(h)	to permit the Company and any persons duly authorised by the Company to enter on any land or premises in which the Equipment is for the time being situated so as to install, inspect, remove, repair, replace or substitute the Equipment;
	(i)	not by any act or default to render the Equipment liable to any distress, execution or other legal process or suffer the appointment or the presentation of a petition for the appointment or the presentation of a petition for the appointment of an administrator, receiver or liquidator;
	(j)	not to use or permit the Equipment to be used for any purposes other than accessing the Services, or in contravention of any statutory provision or regulation or in any way contrary to law or for any purpose for which the Equipment is not designed or reasonably suitable;
	(k)	not to use the Equipment in combination or in conjunction with any other equipment, components or accessories without the Company's written consent;
	(l)	not to remove the Equipment from the Location without the Company's prior written consent, and to notify the Company in writing of any change in the Customer's address and upon the request of the Company to inform the Company in writing of the whereabouts of the Equipment. The Customer shall be responsible for all costs and expenses in relation to any relocation;
	(m)	punctually pay all rents, rates, taxes and other outgoings payable in respect of the Location and any other premises in which with the consent of the Company the Equipment may be housed;
	(n)	not to sell or offer for sale, assign, mortgage, pledge, sub-lease or lend out the Equipment or any interest therein, but to keep the Equipment in its own possession (legal and physical) and under its control and to prevent the creation of any charge or lien thereon;
	(o)	to ensure that no rights whether present, future or contingent are created or become exercisable in respect of the Equipment under any mortgage, charge or debenture (whether specific or floating) of or in respect of the Customer's assets or any premises in which the Equipment may be installed or stored. The Customer acknowledges the right on the part of the Company to notify any mortgagee or chargee from time to time of the Customer's assets of the existence of this Agreement and of such of the Equipment as the Company shall consider appropriate;
	(p)	if requested by the Company, to affix or cause to be affixed to the Equipment or any separate part or parts thereof requested by the Company plates or other forms of marking indicating in terms approved by the Company the ownership of the Equipment. The Customer shall ensure that such plates or markings remain so affixed and that the same are conspicuous and are at no time removed obliterated, defaced or covered up;
	(q)	that the Equipment shall remain the property of the Company (notwithstanding that it may have become affixed or attached to any land or building) and that the Customer shall have no right or interest therein otherwise than as stated in this Agreement and shall at no time do or permit to be done any act or thing which might prejudice or jeopardise the rights of the Company in and to the Equipment; and
	(r)	to immediately return the Equipment and associated documentation to the Company in good and serviceable condition and working order (fair wear and tear excepted) upon expiry or termination of this Agreement or the Services or where the use of the Equipment is no longer necessary.
4.8	Subject to the Customer complying with all its obligations in relation to the Equipment, the Company shall use reasonable endeavours to repair the Equipment at times determined by the Company at its sole discretion where necessary. Such repair shall be at the cost of the Company except where the repair is required as a result of accidents, default or negligence (other than that of the Company solely) or events of force majeure referred to in Clause 16.
5	SERVICE CHARGES
5.1	In consideration of the provision of the Services by the Company, the Customer shall:
	(a)	pay the charges for the Services (including, but not limited to, installation charges, monthly charges, purchase prices of goods and rental charges for Equipment);
	(b)	pay any applicable PNETS surcharges;
	(c)	pay any charges for third party services used in connection with the Services; and
	(d)	reimburse the Company for any agreed out-of-pocket expenses,
	without any deduction or set off, and in the amounts and manner and at the times (including, but not limited to, payment in advance) specified by the Company. All invoices are due and payable as specified in the invoices. All charges are non-refundable. The Customer agrees that the records of the Company shall be conclusive evidence of the amount of usage of the Services and the charges payable by the Customer.
5.2	The Customer agrees that the Company may send invoices to the Customer by electronic means including, but not limited to, by email. The Company may charge the Customer for preparation and sending of hard copy invoices.
5.3	The Customer agrees to treat any invoices issued by the Company's agent as valid invoices as if they were issued by the Company itself.
5.4	All charges are exclusive of any taxes or duties which may be levied or assessed upon the Services provided hereunder. Any such taxes shall be paid by the Customer.
5.5	The Customer agrees that the Company may set off any amount owing by the Customer under this Agreement against any amount owing by the Company to the Customer including, but not limited to, using any deposit paid by the Customer to the Company or any credit in any Customer's account with the Company (whether related to the Services or this Agreement or not) to pay any amount owing to the Company by the Customer under this Agreement.
5.6	The Customer agrees not to raise any enquiry, dispute or claim in connection with any invoice more than 15 days after the date of the invoice.
5.7	Upon termination or expiration of this Agreement, the Company shall submit to the Customer an invoice which shall set out all outstanding sums payable by the Customer and the Customer shall pay such invoiced amount to the Company immediately.
5.8	If any sum payable by the Customer under this Agreement is not paid by the due date, the Company reserves the right to charge interest from the due date for payment to the actual date of payment at the rate of 2% per month calculated on a daily basis (or the maximum rate permitted by law, whichever is lower) and to suspend or terminate the provision of the Services to the Customer without prior notice.
5.9	The Customer agrees to pay the Company its reasonable expenses including but not limited to, legal and other professional fees and collection agency fees, incurred in enforcing its rights under this Agreement. If requested by the Company, the Customer shall pay an administration fee in respect of any dishonoured cheque or unsuccessful payment.
5.10	The Customer agrees that the Company may engage debt collection agencies to collect any amount due but unpaid by the Customer and that the Company may disclose any information of the Customer to the debt collection agencies. The Company shall not be responsible or liable for any acts or omissions of the debt collection agencies.
5.11	The Customer hereby authorises the Company to make use of any auto-pay, credit card debit authority or direct debit authority to pay to itself any costs, expenses, losses or damages incurred or sustained by the Company for which the Customer is liable.
5.12	The Company reserves the right to change the charges for the Services effective at any time without notice. The Company may expand the Services or introduce new Services which, if made available to or used by the Customer, shall be paid for by the Customer.
6.	DEPOSIT
6.1	The Customer shall pay the Company any deposit which may be required by the Company to secure the due observance and performance of this Agreement by the Customer.
6.2	The Deposit will be retained by the Company free of any interest to the Customer. Without affecting any right or remedy which the Company may have, the Company may deduct from the Deposit the amount of any loss, damages or expenses sustained or incurred by the Company as a result of any breach of this Agreement by the Customer. Upon demand by the Company, the Customer will immediately pay to the Company an amount equivalent to the deducted amount to replace the part of the deposit so used by the Company. Subject to the foregoing, the Company will repay any unused Deposit within 90 days after the expiry of the Term, or within 90 days after the settlement of the last outstanding claim by the Company against the Customer, whichever is later.
7.	SUSPENSION AND DISCONNECTION OF SERVICES
7.1	The Company may amend, suspend, disconnect or withdraw all or any part of the Services to the Customer at any time without notice or reason and without any liability to the Customer including, but not limited to, under the following situations:
	(a)	compliance with any request, order or instruction of any competent authority;
	(b)	performance of maintenance services;
	(c)	to prevent or remedy attack on, damage to or unauthorised use of the Company's services, network or equipment;
	(d)	if the Customer or any User fails to comply with reasonable requirements imposed by the Company in relation to the use of the Services;
	(e)	in an event of emergency; or
	(f)	if the Company amends, suspends or withdraws the provision of the Services generally.
7.2	The Customer shall continue to be liable for all charges during the period of any suspension of the Services.
7.3	If the Services are disconnected, the Company may dispose of or reassign any accounts, passwords or email addresses previously assigned to the Customer.
7.4	The Customer shall pay any resumption or reconnection charges specified by the Company.
8.	TERM AND TERMINATION
8.1	This Agreement shall commence on the day the Application is accepted by the Company until terminated by either party in accordance with Clause 8.2 below.
8.2	This Agreement may be terminated:
	(a)	by either party by 30 days' written notice to the other party; or
	(b)	by the Company if:
		(i)	any amount payable by the Customer under this Agreement is overdue;
		(ii)	the Customer exceeds its credit limit set by the Company;
		(iii)	the Customer commits any breach of this Agreement or any other agreement with the Company;
		(iv)	the Customer becomes insolvent or compounds with its creditors generally or become the subject of any bankruptcy, insolvency, reorganisation, winding up or liquidation proceedings analogous in purpose or effect (including the appointment of a receiver, administrator or liquidator);
		(v)	any licence required for accessing the Services by the Customer becomes invalid or is breached, suspended or revoked;
		(vi)	the Customer becomes prohibited by law from performing this Agreement; or
		(vii)	any licence required for provision of the Services by the Company is amended, withdrawn, cancelled, revoked, surrendered or has expired or the Company is otherwise prohibited by law from performing any part of this Agreement.
8.3	If this Agreement is terminated (whether or not under Clause 8.2) before the expiry of any Minimum Contract Term other than by the Company under Clause 8.2(a) or 8.2(b)(vii), the Customer shall immediately pay to the Company as liquidated damages either the sum of all periodic charges that would have been payable during the unexpired portion of the Minimun Contract Term, or another amount agreed in advance between the parties (as the case may be).
8.4	Upon termination of this Agreement or the Services, the Customer shall immediately cease using the Services and shall permit the Company to enter the relevant premises to terminate the Services and remove the Equipment. If the Equipment is attached to the premises or other items, the Company shall not be liable for any damage to the premises or the items caused by the removal of the Equipment.
8.5	The termination or expiration of this Agreement or the Services shall not prejudice or affect any rights or liabilities of any party under this Agreement accrued prior to such expiration or termination.

9.	DISCLAIMER OF WARRANTIES
9.1	The Customer acknowledges and agrees that:
	(a)		the Company has no control over, and accept no responsibility for, the content of the information which passes through the Company's or the Customer's computers, networks or points of presence or which is otherwise accessible through the Services; and
	(b)		the use of such information is at the Customer's own risk and that the Company has no responsibility for the accuracy or quality of such information.
9.2	The Customer acknowledges and agrees that the Services are provided "AS IS" and "WHERE IS" and the Customer uses the Services at its own risk. The Company does not warrant that the Services are secure or that their provision will be uninterrupted or error free.
9.3	To the fullest extent permitted by law, the Company specifically disclaims all warranties, terms and conditions of any kind, whether express or implied including, without limitation, the implied warranties of title, merchantability, quality, fitness for a particular purpose and non-infringement of any rights in respect of the Services or information provided by the Company to the Customer.
9.4	When any warranty, term or condition implied by law cannot be excluded, the Company's liability in connection with any breach of such warranty, term or condition will be limited to:
	(a)		in relation to goods, repair or replacement of the goods or paying the cost of having the goods repaired or replaced; and
	(b)		in relation to services, resupply of the services or paying the cost of having the services resupplied.
10.	LIMITATION OF LIABILITY
10.1	Under no circumstances shall the Company be liable for any indirect, incidental, special, consequential or exemplary damages or loss including, but not limited to, any loss or damages resulting from the Customer's use of the Services, damages in connection with third party claims, damages for loss of data resulting from delays, non-deliveries, mis-deliveries or service interruptions or from loss of profits, goodwill, and the like, whether or not the Company has been advised or is or should have been aware of the possibility of such damages.
10.2	The aggregate liability of the Company in connection with this Agreement (whether in contract or tort or otherwise) shall not exceed HK$500,000 or the fees for the Services paid to the Company by the Customer in the six month period immediately preceding the event giving rise to the liability, whichever is less.
10.3	Nothing herein shall limit either party's liability for death or personal injury.
11.	INDEMNITY TO THE COMPANY
	The Customer agrees to indemnify and hold harmless the Company from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Company arising out of or in connection with the use of the Services or this Agreement.
12.	INTELLECTUAL PROPERTY RIGHTS
12.1	All Intellectual Property Rights created by the Company in connection with the performance of the Services shall vest in the Company.
12.2	The Company grants to the Customer a limited, personal, non-exclusive, non-transferable, revocable licence to use the object code of the software provided by the Company to the Customer under this Agreement on the Equipment or Customer Provided Items in Hong Kong. The Customer shall safeguard and keep the software and associated documentation in its possession (legal and physical) and only use the software and documentation for the purposes of using the Services and shall comply with the terms of any applicable software licence. The Customer shall not, and shall not permit any person to, copy, reproduce, sell, mortgage, sub-license, export, modify, adapt, disassemble, decompile or reverse engineer the software (including, but not limited to, any locking or security device used or provided with the software) or associated documentation. Upon termination of this Agreement or the Services or where the use of the software is no longer necessary, the Customer shall return the software and associated documentation to the Company and irretrievably delete them from the Customer's systems immediately.
12.3	The Customer grants to the Company an irrevocable royalty-free licence to copy, distribute, transmit, publish, adapt and make available any content of the Customer or the Users for the purposes of the Services. The Customer warrants that the exercise of the licence by the Company and its licensees will not infringe any right of any person.
12.4	The Customer shall not have any right to use the Company's Intellectual Property Rights without the prior written consent of the Company.
13.	PERSONAL INFORMATION COLLECTION
13.1	In accordance with the provisions of the Personal Data (Privacy) Ordinance (Cap. 486) (the "Ordinance") the Customer hereby consents to, and shall ensure that each User consents to, the Company (i) using any personal data (as defined in the Ordinance) supplied in the Personal Information Collection Statements in connection with this Agreement, or otherwise provided by the Customer or the User, for the purposes of credit checking, debt collection, direct debit payment, direct marketing and/or market survey, and/or (ii) supplying such personal data to any companies within the group of which the Company is a member or with which the Company is associated and/or to any selected third parties for the aforesaid purposes, and/or (iii) disclosing information to the Telecommunications Authority where such disclosure is required by law for the discharge of the Company's obligations under the provisions in the Telecommunications Ordinance.
13.2	The Customer consents to, and shall ensure that each User consents to, the inclusion of its and its names, addresses, businesses, telephone numbers and other information in directories and related disclosure unless it has notified in writing to the Company otherwise.
14.	COMPLIANCE WITH RELEVANT LAW
	The Company shall not be liable for any loss, damages, claims, costs or expenses of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Customer or any User for its compliance with any legislation, regulations, codes of practice, guidance and other requirements of any authority, government or governmental agency. The Customer and the Users shall have no cause for compliant or any remedy for any variations to the provision of the Services due to directions that the Company may receive from relevant authorities from time to time. The Customer irrevocably authorises, and shall ensure that each User authorises, the Company to release such information of the Customer or the User retained by the Company as such regulatory authorities may request from time to time, whether direct or indirect.
15.	NON-SOLICITATION
	The Customer shall not employ, contract with or engage any person engaged by the Company and involved in the supply of the Services during the Term and for a period of six months after the end of the Term.
16.	FORCE MAJEURE
	The Company shall not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control including, but not limited to, acts of God, earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, governmental act or failure, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, or other occurrences which are beyond the Company's reasonable control.
17.	COSTS AND EXPENSES
	Each party shall bear its own costs and expenses (including legal and other professional costs) in relation to the negotiation, preparation, execution and performance of this Agreement.
18.	WAIVER
	No failure or delay by the Company in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by the Company of any breach of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
19.	CORPORATE AUTHORITY
	The Customer represents and warrants to the Company that it has full power, authority and right and has taken all corporate and other action necessary to enter into and carry out its obligations under this Agreement.
20.	RELATIONSHIP BETWEEN THE PARTIES
20.1	Nothing in this Agreement shall be construed as constituting a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except as specified by the terms of this Agreement
20.2	The Customer acknowledges and agrees, and shall ensure that each User acknowledges and agrees, that the Users are not parties to this Agreement and that the Company has no liability to any User under this Agreement.
21.	ENTIRE AGREEMENT
	This Agreement supercedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by the Company under Clause 1.6 or by a written instrument signed by a duly authorised representative of each of the parties.
22.	NOTICES
22.1	All notices, requests, demands and other communications required to be made or given by the Customer under the terms of this Agreement or in connection herewith shall be given or made to or upon the Company in writing by hand or by registered mail (air-mail, if outside the sender's country or territory), or by facsimile confirmed in writing by hand or by registered mail after despatch, and shall be addressed to the Company at the address or fax number in Hong Kong as the Company may from time to time notify to the Customer.
22.2	Any notice, request, demand and other communication which may, or is required to, be given or made by the Company may be given or made in any manner and by any method, including but not limited to, orally or by hand, mail, facsimile, telephone or email to the address, fax number, telephone number or email address of the Customer last known to the Company.
22.3	Any notice, request, demand and other communication given or made shall be deemed to have been received in the case of communications in writing and delivered by hand on the date of delivery (or, if the date of delivery is not a Business Day, on the following Business Day); in the case of written communications sent by registered mail, on the date the registered mail is received; in the case of email, on the date of despatch; in the case of orally, on the date when spoken; and in the case of facsimile, on the date of delivery thereof (or, if the date of delivery is not a Business Day, on the following Business Day).
23.	SURVIVAL OF CLAUSES
	The Clauses of this Agreement which by their nature should continue to apply following termination of this Agreement shall survive termination of this Agreement including, but not limited to, Clauses 4.7(a), 5, 6.2, 8.3, 8.4, 9 to 11, 12.3, 13 to 26.
24.	SEVERABILITY
	If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement under the laws of that jurisdiction, nor the legality, validity or enforceability of such provisions under the laws of any jurisdiction shall in any way be thereby affected or impaired.
25.	ASSIGNMENT
	The Customer shall not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder whether in whole or in part without the prior written consent of the Company. The Company may assign any of its rights and obligations hereunder to any of its affiliate without the prior written consent of the Customer.
26.	GOVERNING LAW
	This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts in Hong Kong.

Gazette No.: 10/2001 Published on 9 Mar 2001

FIXED TELECOMMUNICATION NETWORK SERVICES LICENCE
TELECOMMUNICATION ORDINANCE (Chapter106)

In accordance with General Condition 20 of Fixed Telecommunication Network Services Licence, Eastar Technology Limited hereby publishes the General Terms and Conditions for Service (for wholesale customers) under which it will provide the Fixed Telecommunication Network Services.

GENERAL TERMS AND CONDITIONS FOR SERVICE (FOR WHOLESALE CUSTOMERS)

1.	INTERPRETATION
1.1	In this Agreement, unless the context requires otherwise the following expressions shall have the following meanings respectively:-
	"Application"	means any written application submitted by the Customer to the Company for the provision of the Services;
	"Business Day"	means any day, except Saturdays and Sundays, on which banks in Hong Kong are open for business;
	"Change in Control"	means any change in management, control or ownership of the Customer;
	"Company"	means Eastar Technology Limited;
	"Customer"	means the person subscribing for the Services under this Agreement for the purpose of resale to its residential customers, references to which in this Agreement shall not include the Users;
	"Customer Provided Items"	means the items used by the Customer or any User to access or connect to the Services, other than the Equipment;
	"Deposit"	means any deposit payable by the Customer to the Company in accordance with this Agreement;
	"Dollar(s)" and "HK$"	means Hong Kong Dollars, the lawful currency of Hong Kong for the time being;
	"Equipment"	means any equipment provided by the Company to the Customer or any User;
	"Hong Kong"	means the Hong Kong Special Administrative Region of the People's Republic of China;
	"Intellectual Property Rights"	means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights, rights to confidential information, actual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
	"Location"	means the site or sites where the Equipment is to be installed;
	"Minimum Contract Term"	means any minimum period for which the Customer agrees to acquire the Services as stated in any Special Conditions or Application;
	"Services"	means the services provided by the Company to the Customer (including, but not limited, those for resale to the Users) under this Agreement as described in the Application and includes, but not limited to, the provision of any goods;
	"Special Conditions"	means any terms and conditions identified as such and applicable to the Services;
	"Term"	means the duration of this Agreement as specified in Clause 8.1; and
	"User"	means any person accessing the Services under or through the Customer's accounts or email addresses provided by the Company (whether or not such accounts or email addresses are in turn assigned by the Customer to other persons) including, but not limited to, any customer of the Customer in respect of the Services.
1.2	References herein to Clauses are to the clauses of this Agreement unless the context requires otherwise.
1.3	The headings are inserted for convenience only and shall not affect the construction of this Agreement.
1.4	Unless the context requires otherwise, words importing the singular include the plural and vice versa, words importing a gender include every gender and references to any person shall include references to an individual, firm, or body corporate or incorporate.

1.5	This Agreement comprises the following documents (in decreasing order of precedence):
	(d)	the Special Conditions;
	(e)	the clauses of this Agreement; and
	(f)	the Application.
	The English version of this Agreement shall prevail over versions in any other language.
1.6	The terms of this Agreement are subject to change by the Company by publication, by notice or in accordance with the Telecommunications Ordinance.
2.	SERVICES
2.1	The Company shall use reasonable commercial endeavours to supply the Services on the terms and conditions of this Agreement commencing from the date advised by the Company. The Customer acknowledges and agrees that as some Services are provided on a shared basis, the Company does not warrant or guarantee their availability, quality and performance as they may be affected by the use of the Services by other customers.
2.2	The Customer shall act as the purchaser of all Services including, but not limited to, all Services provided to the customers of the Customer based on the Customer's orders.
2.3	The Company may install or reconfigure the Customer Provided Items for the purposes of the Services including, but not limited to, removal or substitution of any network connections and related items. The Company shall not be liable for any consequences of such installation or reconfiguration including, but not limited to, the voiding of any warranty applicable to the Customer Provided Items.
2.4	Where any Company employee or contractor works under the guidance or follows the direction of the Customer or any User, then (to the fullest extent permitted by law) the Company shall have no liability (whether in contract or tort or otherwise) in connection with any act or omission of such employee or contractor which results from that guidance or direction.
2.5	The Company shall not be responsible for any interruptions or disruptions to the Services caused by or resulting from the failure or poor performance of any third party network or telecommunications services which it uses to perform the Services.
3.	CUSTOMER OBLIGATIONS
3.1	The Customer shall comply with all policies of the Company applicable to its resellers and the resale and marketing of the Services, as amended by the Company from time to time.
3.2	The Customer shall be responsible for making all arrangements necessary for connecting to or accessing the Services including, but not limited to, purchasing any required software or hardware.
3.3	The Customer shall not, and shall ensure that the Users do not, connect any equipment to the Equipment, the Services or the Company's network or equipment without the Company's written consent. The Customer shall ensure that the Customer Provided Items and their interface and connection comply with all relevant standards and regulations including, but not limited to, that required by the Telecommunications Authority. The Customer shall immediately disconnect any Customer Provided Item if requested by the Company.
3.4	The Customer shall be responsible for providing all technical support and customer services to the Users, and be the only point of contact for the Users, unless agreed otherwise by the Company.
3.5	The Customer shall ensure that the Users only use the Services for personal, private and household purposes and not use or allow any person to use the Services for any commercial purpose.
3.6	The Customer shall ensure that the Services are not shared including, but not limited to, on any telecommunications or computer network (such as any local area network or wide area network).
3.7	The Customer shall provide all information reasonably required by the Company including, but not limited to, its and the Users' names, addresses and financial statuses. The Customer shall immediately notify the Company in writing if any information previously provided to the Company is incorrect or has changed.
3.8	The Customer shall keep its, and shall ensure that the Users keep their, user names, account names and passwords secret, and shall be responsible (including, but not limited to, for payment) for all uses of the Services under or through the Customer's or the Users' accounts or email addresses, whether or not the use is authorised by the Customer or the Users.
3.9	The Customer shall ensure that the Services are not used to do any of the following:
	(a)	send unsolicited commercial messages or communications in any form including, but not limited to, sending mass advertisements for products or services, quick-getting-rich schemes, chain letters, or any unsolicited commercial emails;
	(b)	engage in any activities or actions that infringe or misappropriate the intellectual property rights of others including, but not limited to, using third party copyrighted materials without appropriate permission, using third party trademarks without appropriate permission or attribution, and using or distributing third party information protected as a trade secret information or in violation of a duty of confidentiality;
	(c)	engage in any activities or actions that would violate the personal privacy rights of others including, but not limited to, collecting and distributing information about Internet users without their permission;
	(d)	send, post or host harassing, abusive, defamatory, fraudulent, libelous, illegal, offensive, indecent, racist, discriminatory, seditious, threatening, menacing, immoral or obscene materials or assist in any similar activities related thereto;
	(e)	store or distribute prohibited materials including, but not limited to, programs containing viruses or Trojan horses and tools to compromise the security of other computers, networks or sites;
	(f)	intentionally omit, delete, forge or misrepresent any transmission information including headers, return mailing and Internet protocol addresses;
	(g)	engage in any activities or actions intended to withhold or cloak the Customer's or its User's identity or contact information;
	(h)	use the Services for any illegal purposes, in violation of any applicable laws or regulations or in violation of the rules of any other service providers, web sites, chat rooms or the like;
	(i)	make or attempt to make unauthorised use of any computer, network, services or other resources;
	(j)	use the Services for voice transmission; and
	(k)	use the Services in a manner which interferes with the use of telecommunications, network or other services by any person.
3.10	The Customer shall ensure that the acceptable use policies of the Company in relation to the Services are complied with (including, but not limited to, by the Users) at all times.
3.11	The Customer agrees that it and the Users have no right to any email accounts or addresses provided by the Company other than to use it for the purposes of the Services.
3.12	The Customer and the Users have the sole responsibility to back-up their data and software.
3.13	The Customer shall not contact the Company outside the customer service hours as determined by the Company from time to time.
3.14	The Customer shall notify the Company in writing immediately of any Change in Control.
3.15	The Customer shall not make any warranties or guarantees with respect to the Services to any User or any other person.
3.16	The Customer shall ensure, and is liable to the Company for, the compliance with the terms of this Agreement (mutatis mutandis) by all Users. Any breach of this Agreement by any User shall be deemed to be a breach by the Customer.
4.	EQUIPMENT
4.1	The Company may provide equipment to the Customer or the Users for accessing the Services (the "Equipment").
4.2	The Customer shall or shall procure the Users to, at its or their own expenses, suitably prepare the Locations for delivery and installation of the Equipment, and shall afford to the Company all electrical and other connections, fittings and facilities reasonably required by it to enable delivery and installation of the Equipment to take place.
4.3	The Equipment shall be deemed to have been irrevocably accepted by, and all risks of loss or damage to the Equipment shall pass to, the Customer upon delivery.
4.4	Neither the Customer nor the Users shall have any title, right or interest in the Equipment other than the right to use the Equipment solely for the purposes of accessing the Services in accordance with this Agreement.
4.5	The Customer shall, and shall ensure that the Users will, protect the Company's interests in the Equipment including but not limited to, making clear to others that the Company is the owner of the Equipment.
4.6	The Customer shall not, and shall ensure that the Users will not, apply for or obtain any duplicate or counterpart of any document of title, licence or certificate of registration relating to the Equipment without the Company's prior written consent.

4.7	The Customer undertakes to, and shall ensure that each User will, do the following:
	(a)		to take all reasonable and proper care of the Equipment and keep the same in good and serviceable condition and working order (reasonable fair wear and tear excepted) and to indemnify the Company against loss of or damage to the Equipment howsoever caused;
	(b)		to ensure that any instructions or manuals supplied for use of the Equipment are or will prior to the Equipment being brought into use be fully understood and will be observed by the Customer and the User and any person who will be responsible for the use of the Equipment;
	(c)		to take such steps as may be properly recommended by the Company or may otherwise be necessary to ensure that the Equipment will be safe and without risks to health and safety when properly used by the Customer or the User or other authorised users;
	(d)		to obtain, effect and keep effective all permissions, licences and permits which may from time to time be required in connection with the business of the Customer or the User and the use of the Equipment at the premises where it is situated and to comply with all statutes and other obligations of all kinds in relation to the Equipment and the use thereof and at its own expense to add to or to install with the Equipment any safety or other equipment required by any applicable law or regulation to be so added or installed for the use or operation of the Equipment;
	(e)		only to operate the Equipment and to permit the Equipment to be operated in a skilful and proper manner and by persons who are competent to operate such goods;
	(f)		not to tamper with the Equipment or make or cause or permit to be made any alteration, amendment, modification or addition to the Equipment without the Company's prior written consent and that any such alteration or modification of whatsoever kind shall belong to and become the property of the Company and part of the Equipment;
	(g)		to keep the Equipment suitably housed and in particular to keep the Equipment in conformity with any statutory requirements from time to time applicable thereto;
	(h)		to permit the Company and any persons duly authorised by the Company to enter on any land or premises in which the Equipment is for the time being situated so as to install, inspect, remove, repair, replace or substitute the Equipment;
	(i)		not by any act or default to render the Equipment liable to any distress, execution or other legal process or suffer the appointment or the presentation of a petition for the appointment or the presentation of a petition for the appointment of an administrator, receiver or liquidator;
	(j)		not to use or permit the Equipment to be used for any purposes other than accessing the Services, or in contravention of any statutory provision or regulation or in any way contrary to law or for any purpose for which the Equipment is not designed or reasonably suitable;
	(k)		not to use the Equipment in combination or in conjunction with any other equipment, components or accessories without the Company's written consent;
	(l)		not to remove the Equipment from the Locations without the Company's prior written consent, and to notify the Company in writing of any change in the Customer's or the User's address and upon the request of the Company to inform the Company in writing of the whereabouts of the Equipment. The Customer shall be responsible for all costs and expenses in relation to any relocation;
	(m)		punctually pay all rents, rates, taxes and other outgoings payable in respect of the Locations and any other premises in which with the consent of the Company the Equipment may be housed;
	(n)		not to sell or offer for sale, assign, mortgage, pledge, sub-lease or lend out the Equipment or any interest therein, but to keep the Equipment in its own possession (legal and physical) and under its control and to prevent the creation of any charge or lien thereon;
	(o)		to ensure that no rights whether present, future or contingent are created or become exercisable in respect of the Equipment under any mortgage, charge or debenture (whether specific or floating) of or in respect of the Customer's or the User's assets or any premises in which the Equipment may be installed or stored. The Customer acknowledges, and shall ensure that each User acknowledges, the right on the part of the Company to notify any mortgagee or chargee from time to time of the Customer's or the User's assets of the existence of this Agreement and of such of the Equipment as the Company shall consider appropriate;
	(p)		if requested by the Company, to affix or cause to be affixed to the Equipment or any separate part or parts thereof requested by the Company plates or other forms of marking indicating in terms approved by the Company the ownership of the Equipment. The Customer shall ensure that such plates or markings remain so affixed and that the same are conspicuous and are at no time removed obliterated, defaced or covered up;
	(q)		that the Equipment shall remain the property of the Company (notwithstanding that it may have become affixed or attached to any land or building) and that the Customer or the User shall have no right or interest therein otherwise than as stated in this Agreement and shall at no time do or permit to be done any act or thing which might prejudice or jeopardise the rights of the Company in and to the Equipment; and
	(r)		to immediately return the Equipment and associated documentation to the Company in good and serviceable condition and working order (fair wear and tear excepted) upon expiry or termination of this Agreement or the relevant Services or where the use of the Equipment is no longer necessary.
4.8	Subject to the Customer and the Users complying with all their obligations in relation to the Equipment, the Company shall use reasonable endeavours to repair the Equipment at times determined by the Company at its sole discretion where necessary. Such repair shall be at the cost of the Company except where the repair is required as a result of accidents, default or negligence (other than that of the Company solely) or events of force majeure referred to in Clause 16.
5.	SERVICE CHARGES
5.1	In consideration of the provision of the Services by the Company, the Customer shall:
	(a)		pay the charges for the Services (including, but not limited to, installation charges, monthly charges, purchase prices of goods and rental charges for Equipment);
	(b)		pay any applicable PNETS surcharges;
	(c)		pay any charges for third party services used in connection with the Services; and
	(d)		reimburse the Company for any agreed out-of-pocket expenses,
	without any deduction or set off, and in the amounts and manner and at the times (including, but not limited to, payment in advance) specified by the Company. All invoices are due and payable as specified in the invoices. All charges are non-refundable. The Customer agrees that the records of the Company shall be conclusive evidence of the amount of usage of the Services and the charges payable by the Customer.
5.2	The Customer agrees that the Company may send invoices to the Customer by electronic means including, but not limited to, by email. The Company may charge the Customer for preparation and sending of hard copy invoices.
5.3	The Customer agrees to treat any invoices issued by the Company's agent as valid invoices as if they were issued by the Company itself.
5.4	All charges are exclusive of any taxes or duties which may be levied or assessed upon the Services provided hereunder. Any such taxes shall be paid by the Customer.
5.5	The Customer agrees that the Company may set off any amount owing by the Customer under this Agreement against any amount owing by the Company to the Customer including, but not limited to, using any deposit paid by the Customer to the Company or any credit in any Customer's account with the Company (whether related to the Services or this Agreement or not) to pay any amount owing to the Company by the Customer under this Agreement.
5.6	The Customer agrees not to raise any enquiry, dispute or claim in connection with any invoice more than 15 days after the date of the invoice.
5.7	Upon termination or expiration of this Agreement, the Company shall submit to the Customer an invoice which shall set out all outstanding sums payable by the Customer and the Customer shall pay such invoiced amount to the Company immediately.
5.8	If any sum payable by the Customer under this Agreement is not paid by the due date, the Company reserves the right to charge interest from the due date for payment to the actual date of payment at the rate of 2% per month calculated on a daily basis (or the maximum rate permitted by law, whichever is lower) and to suspend or terminate the provision of the Services to the Customer or the Users without prior notice.
5.9	The Customer agrees to pay the Company its reasonable expenses including but not limited to, legal and other professional fees and collection agency fees, incurred in enforcing its rights under this Agreement. If requested by the Company, the Customer shall pay an administration fee in respect of any dishonoured cheque or unsuccessful payment.
5.10	The Customer agrees that the Company may engage debt collection agencies to collect any amount due but unpaid by the Customer and that the Company may disclose any information of the Customer to the debt collection agencies. The Company shall not be responsible or liable for any acts or omissions of the debt collection agencies.
5.11	The Customer hereby authorises the Company to make use of any auto-pay, credit card debit authority or direct debit authority to pay to itself any costs, expenses, losses or damages incurred or sustained by the Company for which the Customer or any User is liable.
5.12	The Company reserves the right to change the charges for the Services effective at any time without notice. The Company may expand the Services or introduce new Services which, if made available to or used by the Customer or any User, shall be paid for by the Customer.
6.	DEPOSIT
6.1	The Customer shall pay the Company any deposit which may be required by the Company to secure the due observance and performance of this Agreement by the Customer and the Users.
6.2	The Deposit will be retained by the Company free of any interest to the Customer. Without affecting any right or remedy which the Company may have, the Company may deduct from the Deposit the amount of any loss, damages or expenses sustained or incurred by the Company as a result of any breach of this Agreement by the Customer or the Users. Upon demand by the Company, the Customer will immediately pay to the Company an amount equivalent to the deducted amount to replace the part of the deposit so used by the Company. Subject to the foregoing, the Company will repay any unused Deposit within 90 days after the expiry of the Term, or within 90 days after the settlement of the last outstanding claim by the Company against the Customer or any User, whichever is later.
7.	SUSPENSION AND DISCONNECTION OF SERVICES
7.1	The Company may amend, suspend, disconnect or withdraw all or any part of the Services to the Customer or any User at any time without notice or reason and without any liability to the Customer including, but not limited to, under the following situations:
	(a)		compliance with any request, order or instruction of any competent authority;
	(b)		performance of maintenance services;
	(c)		to prevent or remedy attack on, damage to or unauthorised use of the Company's services, network or equipment;
	(d)		if the Customer or any User fails to comply with reasonable requirements imposed by the Company in relation to the use of the Services;
	(e)		in an event of emergency; or
	(f)		if the Company amends, suspends or withdraws the provision of the Services generally.
7.2	The Customer shall continue to be liable for all charges during the period of any suspension of the Services.
7.3	If the Services are disconnected, the Company may dispose of or reassign any accounts, passwords or email addresses previously assigned to the Customer or the Users.
7.4	The Customer shall pay any resumption or reconnection charges specified by the Company.
8.	TERM AND TERMINATION
8.1	This Agreement shall commence on the day the Application is accepted by the Company until terminated by either party in accordance with Clause 8.2 below.
8.2	This Agreement may be terminated:
	(a)		by either party by 30 days' written notice to the other party; or
	(b)		by the Company if:
			(i)	any amount payable by the Customer under this Agreement is overdue;
			(ii)	the Customer exceeds its credit limit set by the Company;
			(iii)	the Customer or any User commits any breach of this Agreement or any other agreement with the Company;
			(iv)	the Customer becomes insolvent or compounds with its creditors generally or become the subject of any bankruptcy, insolvency, reorganisation, winding up or liquidation proceedings analogous in purpose or effect (including the appointment of a receiver, administrator or liquidator);
			(v)	there is any Change in Control;
			(vi)	any licence required for accessing the Services by the Customer or any User becomes invalid or is breached, suspended or revoked;
			(vii)	the Customer becomes prohibited by law from performing this Agreement; or
			(viii)	any licence required for provision of the Services by the Company is amended, withdrawn, cancelled, revoked, surrendered or has expired or the Company is otherwise prohibited by law from performing any part of this Agreement.
8.3	If this Agreement is terminated (whether or not under Clause 8.2) before the expiry of any Minimum Contract Term other than by the Company under Clause 8.2(a) or 8.2(b)(viii), the Customer shall immediately pay to the Company as liquidated damages either the sum of all periodic charges that would have been payable during the unexpired portion of the Minimum Contract Term, or another amount agreed in advance between the parties (as the case may be).
8.4	The Customer may also terminate any part of the Services by 30 days written notice to the Company.
8.5	Upon termination of this Agreement or the relevant Services, the Customer shall, and shall ensure that the Users will, immediately cease using the relevant Services and permit the Company to enter the relevant premises to terminate the relevant Services and remove the relevant Equipment. If the relevant Equipment is attached to the premises or other items, the Company shall not be liable for any damage to the premises or the items caused by the removal of the Equipment.
8.6	The termination or expiration of this Agreement or the Services shall not prejudice or affect any rights or liabilities of any party under this Agreement accrued prior to such expiration or termination.

9.	DISCLAIMER OF WARRANTIES
9.1	The Customer acknowledges and agrees, and shall ensure that each User acknowledges and agrees, that:
	(a)			the Company has no control over, and accept no responsibility for, the content of the information which passes through the Company's, the Customer's or the User's computers, networks or points of presence or which is otherwise accessible through the Services; and
	(b)			the use of such information is at the Customer's or the User's own risk and that the Company has no responsibility for the accuracy or quality of such information.
9.2	The Customer acknowledges and agrees, and shall ensure that each User acknowledges and agrees, that the Services are provided "AS IS" and "WHERE IS" and the Customer or the User uses the Services at its own risk. The Company does not warrant that the Services are secure or that their provision will be uninterrupted or error free.
9.3	To the fullest extent permitted by law, the Company specifically disclaims all warranties, terms and conditions of any kind, whether express or implied including, without limitation, the implied warranties of title, merchantability, quality, fitness for a particular purpose and non-infringement of any rights in respect of the Services or information provided by the Company to the Customer or any User.
9.4	When any warranty, term or condition implied by law cannot be excluded, the Company's liability in connection with any breach of such warranty, term or condition will be limited to:
	(a)			in relation to goods, repair or replacement of the goods or paying the cost of having the goods repaired or replaced; and
	(b)			in relation to services, resupply of the services or paying the cost of having the services resupplied.
10.	LIMITATION OF LIABILITY
10.1	Under no circumstances shall the Company be liable for any indirect, incidental, special, consequential or exemplary damages or loss including, but not limited to, any loss or damages resulting from the Customer's or the Users' use of the Services, damages in connection with third party claims, damages for loss of data resulting from delays, non-deliveries, mis-deliveries or service interruptions or from loss of profits, goodwill, and the like, whether or not the Company has been advised or is or should have been aware of the possibility of such damages.
10.2	The aggregate liability of the Company in connection with this Agreement (whether in contract or tort or otherwise) shall not exceed HK$500,000 or the fees for the Services paid to the Company by the Customer in the six month period immediately preceding the event giving rise to the liability, whichever is less.
10.3	Nothing herein shall limit either party's liability for death or personal injury.
11.	INDEMNITY TO THE COMPANY
	The Customer agrees to indemnify and hold harmless the Company from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Company arising out of or in connection with the use of the Services or this Agreement.
12.	INTELLECTUAL PROPERTY RIGHTS
12.1	All Intellectual Property Rights created by the Company in connection with the performance of the Services shall vest in the Company.
12.2	The Company grants to the Customer and the Users a limited, personal, non-exclusive, non-transferable, revocable licence to use the object code of the software provided by the Company to the Customer or the Users under this Agreement on the Equipment or Customer Provided Items in Hong Kong. The Customer shall, and shall ensure that each User will, safeguard and keep the software and associated documentation in its possession (legal and physical) and only use the software and documentation for the purposes of using the Services and shall comply with the terms of any applicable software licence. The Customer shall not and shall ensure that no User will, and shall not permit any person to and shall ensure that no User will permit any person to, copy, reproduce, sell, mortgage, sub-license, export, modify, adapt, disassemble, decompile or reverse engineer the software (including, but not limited to, any locking or security device used or provided with the software) or associated documentation. Upon termination of this Agreement or the Services (or part thereof) or where the use of the software is no longer necessary, the Customer shall return the relevant software and associated documentation to the Company and irretrievably delete them from the Customer's and the Users' systems immediately.
12.3	The Customer grants, and shall ensure that the Users grant, to the Company an irrevocable royalty-free licence to copy, distribute, transmit, publish, adapt and make available any content of the Customer or the Users for the purposes of the Services. The Customer warrants that the exercise of the licence by the Company and its licensees will not infringe any right of any person.
12.4	The Customer and the Users shall not have any right to use the Company's Intellectual Property Rights without the prior written consent of the Company.
13.	PERSONAL INFORMATION COLLECTION
13.1	In accordance with the provisions of the Personal Data (Privacy) Ordinance (Cap. 486) (the "Ordinance") the Customer hereby consents to, and shall ensure that each User consents to, the Company (i) using any personal data (as defined in the Ordinance) supplied in the Personal Information Collection Statements in connection with this Agreement, or otherwise provided by the Customer or the User, for the purposes of credit checking, debt collection, direct debit payment, direct marketing and/or market survey, and/or (ii) supplying such personal data to any companies within the group of which the Company is a member or with which the Company is associated and/or to any selected third parties for the aforesaid purposes, and/or (iii) disclosing information to the Telecommunications Authority where such disclosure is required by law for the discharge of the Company's obligations under the provisions in the Telecommunications Ordinance.
13.2	The Customer consents to, and shall ensure that each User consents to, the inclusion of its names, addresses, businesses, telephone numbers and other information in directories and related disclosure unless it has notified in writing to the Company otherwise.
14.	COMPLIANCE WITH RELEVANT LAW
	The Company shall not be liable for any loss, damages, claims, costs or expenses of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Customer or any User for its compliance with any legislation, regulations, codes of practice, guidance and other requirements of any authority, government or governmental agency. The Customer and the Users shall have no cause for compliant or any remedy for any variations to the provision of the Services due to directions that the Company may receive from relevant authorities from time to time. The Customer irrevocably authorises, and shall ensure that each User authorises, the Company to release such information of the Customer or the User retained by the Company as such regulatory authorities may request from time to time, whether direct or indirect.
15.	CONFIDENTIALITY
	The Customer recognises and affirms that any oral or written information disclosed by the Company with respect to the subject matter of this Agreement is confidential information of the Company. The Customer shall keep all such information in strictest confidence and shall not disclose any such information to any third party without the prior written consent of the Company, except to the extent:
	(a)			the information is or becomes available to the public other than as a result of unauthorised disclosure by any person; or
	(b)			disclosure is required by law or the rules of applicable stock exchanges.
16.	PUBLICITY
	The Customer shall obtain the Company's prior written approval before engaging in any publicity or advertising in which the Company is directly or indirectly identified in connection with the Services.
17.	NON-SOLICITATION
	The Customer shall not employ, contract with or engage any person engaged by the Company and involved in the supply of the Services during the Term and for a period of six months after the end of the Term.
18.	FORCE MAJEURE
	The Company shall not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control including, but not limited to, acts of God, earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, governmental act or failure, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, or other occurrences which are beyond the Company's reasonable control.
19.	COSTS AND EXPENSES
	Each party shall bear its own costs and expenses (including legal and other professional costs) in relation to the negotiation, preparation, execution and performance of this Agreement.
20.	WAIVER
	No failure or delay by the Company in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by the Company of any breach of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
21.	CORPORATE AUTHORITY
	The Customer represents and warrants to the Company that it has full power, authority and right and has taken all corporate and other action necessary to enter into and carry out its obligations under this Agreement.
22.	RELATIONSHIP BETWEEN THE PARTIES
22.1	Nothing in this Agreement shall be construed as constituting a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except as specified by the terms of this Agreement. The Customer shall have no right to enter into any contracts or commitments in the name of, or on behalf of, the Company, or to bind the Company in any respect whatsoever.
22.2	The Customer acknowledges and agrees, and shall ensure that each User acknowledges and agrees, that the Users are not parties to this Agreement and that the Company has no liability to any User under this Agreement.
23.	ENTIRE AGREEMENT
	This Agreement supercedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by the Company under Clause 1.6 or by a written instrument signed by a duly authorised representative of each of the parties.
24.	NOTICES
24.1	All notices, requests, demands and other communications required to be made or given by the Customer under the terms of this Agreement or in connection herewith shall be given or made to or upon the Company in writing by hand or by registered mail (air-mail, if outside the sender's country or territory), or by facsimile confirmed in writing by hand or by registered mail after despatch, and shall be addressed to the Company at the address or fax number in Hong Kong as the Company may from time to time notify to the Customer.
24.2	Any notice, request, demand and other communication which may, or is required to, be given or made by the Company may be given or made in any manner and by any method, including but not limited to, orally or by hand, mail, facsimile, telephone or email to the address, fax number, telephone number or email address of the Customer last known to the Company.
24.3	Any notice, request, demand and other communication given or made shall be deemed to have been received in the case of communications in writing and delivered by hand on the date of delivery (or, if the date of delivery is not a Business Day, on the following Business Day); in the case of written communications sent by registered mail, on the date the registered mail is received; in the case of email, on the date of despatch; in the case of orally, on the date when spoken; and in the case of facsimile, on the date of delivery thereof (or, if the date of delivery is not a Business Day, on the following Business Day).
25.	SURVIVAL OF CLAUSES
	The Clauses of this Agreement which by their nature should continue to apply following termination of this Agreement shall survive termination of this Agreement including, but not limited to, Clauses 4.7(a), 5, 6.2, 8.3, 8.5, 9 to 11, 12.3, 13 to 28.
26.	SEVERABILITY
	If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement under the laws of that jurisdiction, nor the legality, validity or enforceability of such provisions under the laws of any jurisdiction shall in any way be thereby affected or impaired.
27.	ASSIGNMENT
	The Customer shall not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder whether in whole or in part without the prior written consent of the Company. The Company may assign any of its rights and obligations hereunder to any of its affiliate without the prior written consent of the Customer.
28.	GOVERNING LAW
	This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts in Hong Kong.

 

 

 

Gazette No.: 10/2001 Published on 9 Mar 2001

FIXED TELECOMMUNICATION NETWORK SERVICES LICENCE
TELECOMMUNICATION ORDINANCE (Chapter106)

In accordance with General Condition 20 of Fixed Telecommunication Network Services Licence, Eastar Technology Limited (referred to as "the Company") hereby publishes the tariffs under which it will provide the following services to service providers only with effect from 12th March, 2001.

Charges for the services

 

Item	Particulars of Services	Amount of Charges	Conditions of Services

1	Wholesale 1.5 M(On Demand) Service to provide service providers who want to offer Broadband Internet Access at UBR 1.5M downstream and 512K upstream to residential customers		The General Terms and Conditions for Service (for wholesale customers) of the Company apply The Special Conditions for Service (for wholesale customers) of the Company apply
	Monthly Fee (Note:1)	HK$175
	Setup Charge (Note: 2)	HK$500
	1 Email Account each with 5 MB storage	Free
	Additional E-mail Storage	HK$20 per MB/month
	E-mail account Amendment Handling Charge	HK$10/e-mail account
	Modem rental	Free on loan
	Network Interface Card	HK$500 each

 

Note:	1.	Monthly Fee includes unlimited internet access usage
	2.	Includes installation up to modem interconnect point only and during normal office hours (Monday to Friday 9:00 am - 6:00 pm, Saturday 9:00 am - 1:00 pm) Surcharge of $500 applies outside normal office hours

SPECIAL CONDITIONS (FOR WHOLESALE CUSTOMERS)

The services are made available by Eastar Technology Limited (the "Company") subject to the Company's General Terms and Conditions for Service (for wholesale customers) and the following Special Conditions. Unless otherwise specified, terms used in these Special Conditions have the same meanings as defined in the General Terms and Conditions.

1.	The Customer is required to commit to achieving agreed volume of sales in each month. Agreed charges shall be payable to the Company for each month in which the committed volume is not achieved.
2.	The Customer shall provide sales forecasts and other reports to the Company at the agreed times and in the agreed forms.
3.	The Minimum Contract Term is two (2) years from Services commencement unless agreed otherwise by the Company.

 

 

Gazette No.: 10/2001 Published on 9 Mar 2001

FIXED TELECOMMUNICATION NETWORK SERVICES LICENCE
TELECOMMUNICATION ORDINANCE (Chapter106)

In accordance with General Condition 20 of Fixed Telecommunication Network Services Licence, Eastar Technology Limited (referred to as "the Company") hereby publishes the tariffs under which it will provide the following service with effect from 12th March, 2001.

Charges for the services

Item	Particulars of Services		Amount of Charges	Conditions of Services

1	1.5M (Always on) Service to provide unlimited Broadband Internet access at UBR 1.5M downstream and 512 K upstream to LAN network environmentfor commercial customers			The General Terms and Conditions for Service (for commercial customers) of the Company apply The Special Conditions (for commercial customers) of the Company apply
	Monthly Fee (Note: 1)		HK2880
	Setup Charge (Note: 2)		HK$3500
	30 Email Accounts each with 5 MB storage		Free
	Additional E-mail		HK$15 per month
	Account each with 5MB Storage
	Additional E-mail Storage		HK$20 per MB/month
	E-mail account		HK$100 plus
		Amendment Handling Charge	HK$5/e-mail account
	Unlimited Dial-up		Free
	Internet Access (Excluding PNETS charge)
	Modem/Router rental (Note: 3)		HK$300/month
	Modem/Router purchase(Note: 4)		HK$6300 each
	Network Interface Card		HK$500 each
	One local (.com.hk) domain name registration		Free
	Global (.com) domain name registration First 2 years Subsequent year		$1000 each $500/year each

Note:

1.	Monthly Fee includes modem/router rental if customer subscribes for one year service contract.
2.	Includes IP address allocation and installation during normal office hours (Monday to Friday 9:00 am - 6:00 pm, Saturday 9:00 am - 1:00 pm) Surcharge of $1000 applies outside normal office hours.
3.	Prepayment of $4500 required with rebates over 15 months for customer without one year service contract.
4.	Includes installation and first year on-site maintenance. Maintenance charge for subsequent year is $100/month subject to one year maintenance contract.

2	Dedicated Internet AccessService to provide unlimited high speed Internet access over dedicated connection to LAN network environment for commercial customers			The General Terms and Conditions for Service (for commercial customers) of the Company apply The Special Conditions (for commercial customers) of the Company apply
	Monthly Fee (Note: 1) 128K dedicated service (128K downstream, 128 upstream)		HK$2980
	256K dedicated service (256K downstream, 256K upstream)		HK$5998
	Setup Charge (Note: 2)		HK$3500
	30 Email Accounts each with 5MB storage		Free
	Additional E-mail Account each with 5 MB Storage		HK$15 per month
	Additional 1 MB E-mail Storage		HK$20 per month
	E-mail Account		HK$100 plus
		Amendment Handling Charge	HK$5/e-mail account
	Unlimited Dial-up		Free
	Internet Access (Excluding PNETS charge)
	Router rental (Note: 3)		HK$1000/month
	Router purchase (Note: 4)		HK$18500 each
	Network Interface Card		HK$500 each
	One local (.com.hk) domain name registration		Free
	Global (.com) domain name registration
	First 2 years		HK$1000 each
	Subsequent year		HK$500/year each

 

Note:

1.	Monthly Fee includes router rental if customer subscribes for one year service contract.
2.	Includes IP address allocation and installation during normal office hours (Monday to Friday 9:00 am - 6:00 pm, Saturday 9:00 am - 1:00 pm) Surcharge of $1000 applies outside normal office hours.
3.	Prepayment of $9000 required with rebates over 15 months for customer without one year service contract.
4.	Includes installation and first year on-site maintenance. Maintenance charge for subsequent year is $200/month subject to one year maintenance contract.

3	Dial up 56K Service to provide Internet access by 56K dial up modem for commercial customers				The General Terms and Conditions for Service (for commercial customers) of the Company apply
	Monthly Fee				The Special Conditions (for commercial customers) of the Company
		First user		HK$108
		Additional user		HK$35
	(Note: 1)
	Usage Charge
		Normal office hour		Free
		(Note: 2)
		Outside normal office Hour
			First 10 hr/user	Free
			Subsequent	HK$5/hour/user
			(Note: 1)
		Registration Charge		HK$50
	1 Email Account per user each with 8MB storage			Free
	Additional 1 MB E-mail Storage			HK$20 per month
	E-mail Account			HK$100 plus
		Amendment Handling Usage		HK$5/email account
	Network Interface Card			HK$500 each

Note:

1.	PNETS charges are not included.
2.	Normal office hour (Monday to Friday 9:00 am - 6:00 pm, Saturday 9:00 am - 1:00 pm)

SPECIAL CONDITIONS (FOR COMMERCIAL CUSTOMERS)

The services are made available by Eastar Technology Limited (the "Company") subject to the Company's General Terms and Conditions for Service (for commercial customers) and the following Special Conditions. Unless otherwise specified, terms used in these Special Conditions have the same meanings as defined in the General Terms and Conditions.

1.	The Customer is required to pay the first month's subscription fee and a deposit equivalent to one month's subscription fee prior to installation and Services commencement unless agreed otherwise by the Company.